Oberhart v. Steele

Filing 13

MEMORANDUM AND ORDER - For the reasons discussed above, the Court finds that petitioner has failed to establish that he is entitled to relief based on state court proceedings that were contrary to, or an unreasonable application of, clearly establi shed federal law, or based upon an unreasonable determination of the facts in light of the evidence presented in state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make a substantial showing of the denial of a constit utional right, the Court will not issue a certificate of appealability. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997). A separate judgment in accordance with this Memorandum will be entered this same date. Signed by District Judge Carol E. Jackson on 5/14/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PATRICK ALAN OBERHART,
Petitioner,
vs.
TROY STEELE,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:12-CV-2234 (CEJ)

MEMORANDUM
This matter is before the Court on the petition of Patrick Alan Oberhart, for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a response
in opposition, and the issues are fully briefed.
Petitioner, Patrick Alan Oberhart, is currently incarcerated at the Potosi
Correctional Center, pursuant to the sentence and judgment of the Circuit Court of the
City of St. Louis, Missouri. On September 10, 2008, a jury found petitioner guilty of
first degree murder and armed criminal action. Resp. Ex. 1. On October 31, 2008,
petitioner was sentenced to two consecutive terms of life imprisonment. Id.
The Missouri Court of Appeals affirmed petitioner’s convictions on October 13,
2009. Resp. Ex. 4; State v. Oberhart, 294 S.W.3d 138 (Mo. Ct. App. 2009). On
January 26, 2010, petitioner filed a pro se motion for post-conviction relief pursuant
to Missouri Supreme Court Rule 29.15. Resp. Ex. 5. Counsel was appointed and filed
an amended motion for post-conviction relief on June 14, 2010. Id. An evidentiary
hearing was held on November 18, 2010. Resp. Ex. 8. On April 25, 2011, the court
denied the motion for post-conviction relief. Resp. Ex. 5. Petitioner appealed, and on
April 17, 2012 the Missouri Court of Appeals affirmed. Resp. Ex. 7.

In the instant § 2254 petition, petitioner asserts five grounds for relief: (1) that
he was denied due process and the right of confrontation when the trial court admitted
the victim’s written statements; (2) that the same rights were violated when trial court
admitted a co-conspirator’s out-of-court statements; (3) that trial counsel was
ineffective for failing to object to testimony about polygraph tests; (4) that counsel on
direct appeal was ineffective for failing to raise the issue of the polygraph tests; and
(5) that trial counsel was ineffective for failing to call him to testify in his own defense.
I.

Background

In 2006, petitioner and his fiancée, Katherine Lindsey, lived with petitioner’s
mother, Rita Oberhart-Servais, in her house in St. Louis. Ms. Oberhart supported the
couple, loaning them money and paying many of their bills, until she decided in
September of 2006 to withdraw her financial support and evict them.
At trial, petitioner’s best friend, Jimmie Tate, testified that petitioner and Lindsey
offered him money to kill Ms. Oberhart. He eventually accepted this offer. On the
evening of December 27, 2006, Ms. Oberhart was returning home after visiting her
relatives over Christmas. Before she arrived, petitioner and Lindsey left the house and
went for a walk. Tate hid in the house and shot Ms. Oberhart in the face as she
opened the front door. He called petitioner to tell him the deed was done, and then
fled.
Detective Hanewinkel investigated the murder, and interviewed petitioner. He
testified that petitioner first suggested that the murder was gang-related. After further
questioning, petitioner said that he hired a thug to burglarize his mother’s house to
scare her out of the home to prevent her from refinancing and sinking into debt.

-2-

Petitioner later told Detective Hanewinkel that he asked Jimmie Tate to burglarize the
house, but his mother wasn’t supposed to get hurt.
II.

Legal Standard

Federal courts may not grant habeas relief on a claim that has been decided on
the merits in state court unless that adjudication:
(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254 (d)(1)-(2).
A state court's decision is "contrary to" clearly established law if "it applies a rule
that contradicts the governing law set forth in [the Supreme Court's] cases, or if it
confronts a set of facts that is materially indistinguishable from a decision of [the
Supreme Court] but reaches a different result." Brown v. Payton, 544 U.S. 133, 141
(2005). "The state court need not cite or even be aware of the governing Supreme
Court cases, ‘so long as neither the reasoning nor the result of the state-court decision
contradicts them.'" Brown v. Luebbers, 371 F.3d 458, 461 (8th Cir. 2004) (citing Early
v. Packer, 537 U.S. 3, 8 (2002)). "In the ‘contrary to' analysis of the state court's
decision, [the federal court's] focus is on the result and any reasoning that the court
may have given; the absence of reasoning is not a barrier to a denial of relief." Id.
A decision involves an "unreasonable application" of clearly established law if
"the state court applies [the Supreme Court's] precedents to the facts in an objectively
unreasonable manner," Payton, 125 S. Ct. at 1439; Williams v. Taylor, 529 U.S. 362,
405 (2000), or "if the state court either unreasonably extends a legal principle from

-3-

[Supreme Court] precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context where it should apply."
Id. at 406. "Federal habeas relief is warranted only when the refusal was ‘objectively
unreasonable,' not when it was merely erroneous or incorrect." Carter v. Kemna, 255
F.3d 589, 592 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410-11).
A state court decision involves an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings only if it is shown that
the state court's presumptively correct factual findings do not enjoy support in the
record. 28 U.S.C. § 2254(e)(1); Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir.2004).
“[T]he prisoner has the burden of rebutting the presumption of correctness by clear
and convincing evidence.” Barnett v. Roper, 541 F.3d 804, 811 (8th Cir. 2008).
III.

Discussion
A.

Ground One

Petitioner argues that his rights under the due process and confrontation clauses
of the Constitution were violated by the admission of Ms. Oberhart’s written
statements, which he contends were inadmissible hearsay.
Trial Exhibits 10 and 11 were Ms. Oberhart’s handwritten notebooks recording
the loans made by her to petitioner, Lindsey, and Tate. Exhibit 12 was a to-do list Ms.
Oberhart had written, which included tasks like canceling phone and television plans
and petitioner’s automobile insurance, and requiring Lindsey to repay debts and move
her furniture out of the house. Exhibit 13 was Ms. Oberhart’s calendar, with an entry
for December 30, 2006 stating that Lindsey and petitioner were no longer allowed to
use her car, had to return her car keys, pay back debts, and move furniture out of her

-4-

house.

Petitioner argues that these statements were inadmissible hearsay, and

violated his rights to a fair trial and to confront witnesses against him.
Petitioner raised this ground on direct appeal, and the state court concluded that
the statements were not hearsay, because they were admitted to show that they were
made, and not to establish the truth of their contents. The hearsay rule only prohibits
the admission of out-of-court statements offered to prove the truth of the out-of-court
declaration. State v. Kelley, 953 S.W.2d 73, 85 (Mo. Ct. App. 1997). Ms. Oberhart’s
statements show that petitioner had a motive to plan the murder. The truth of the
statements is irrelevant. Because the statements are not hearsay, their admission
does not raise confrontation concerns. See Barrett v. Acevedo, 169 F.3d 1155, 1163
(8th Cir. 1999). The state court’s decision was reasonable, and did not run afoul of
petitioner’s rights. Accordingly, relief on this ground will be denied.
B.

Ground Two

Petitioner next argues that the admission of co-defendant Lindsey’s out-of-court
statements violated his due process and confrontation rights.
Petitioner and Lindsey were tried separately. At petitioner’s trial, the court
admitted evidence of Lindsey’s out-of-court statements under the co-conspirator
exception to the hearsay rule. That exception allows the admission of a coconspirator’s statements made in furtherance of the conspiracy.

See State v.

Fleischer, 873 S.W.2d 310, 313 (Mo. Ct. App. 1994). However, one statement to
which Detective Hanewinkel testified was not made in furtherance of the conspiracy,
and fell outside of the exception:
Det. Hanewinkel:

Ms. Lindsey indicated that she was aware of a plan
between Patrick Oberhart and Jimmie Tate to stage
a burglary, and then it became more elaborate and
the plan was to shoot Rita.
-5-

The State:
Det. Hanewinkel:

Okay. So Ms. Lindsey’s statement was that Mr.
Oberhart and Mr. Tate planned the murder of Rita
Oberhart-Servais.
Yes.

Resp. Ex. 1, p. 465. This testimony was allowed over defense counsel’s objection. At
the conclusion of the direct examination of Hanewinkel, the court recognized its error,
and ordered the testimony stricken. The court denied petitioner’s motion for a mistrial,
and instead instructed the jury as follows:
Ladies and gentlemen, during the detective’s testimony, a statement
was made concerning a statement made by Katherine Lindsey to the
effect that Patrick Oberhart and Jimmie Tate planned to stage a
burglary but it became more elaborate and the plan was to shoot the
victim. That statement is inadmissible. It is stricken from the record.
You are to disregard that statement.
Resp. Ex. 1, p. 471.
There is no question that the statement at issue constituted inadmissible
hearsay. The question is whether the court’s instruction cured the error, and if not,
whether the admission of the statement rose to the level of a violation of petitioner’s
constitutional rights. On direct appeal, the state court concluded that the error was
cured by the instruction to disregard the objectionable testimony. Petitioner argues
that the instruction was insufficient, as it is unlikely the jury was able to follow it.
Juries are generally presumed to follow instructions to disregard. See Greer v.
Miller, 453 U.S. 756, 767 n. 8 (1987). A “narrow exception to this principle” applies
in “contexts in which the risk the jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored.” See Bruton v. United States, 391
U.S. 123, 135-36 (1986). In Bruton, the Supreme Court held that “[d]espite the
concededly clear instructions to the jury to disregard [co-defendant’s] inadmissible

-6-

hearsay evidence inculpating petitioner, in the context of a joint trial we cannot accept
limiting instructions as an adequate substitute for petitioner’s constitutional right of
cross-examination.” The narrow exception set forth in Bruton does not apply to this
case, as this was not a joint trial, and the instruction was one to disregard entirely
rather than a limiting instruction allowing the jury to consider a confession against one
defendant but not the other. See United States v. Mitchell, 502 F.3d 931, 965 (9th Cir.
2007) (“Bruton applies only where co-defendants are tried jointly, and is inapplicable
where the non-testifying codefendant is severed out, as was the case here.”); see also
Cargill v. Turpin, 120 F.3d 1366, n.16 (11th Cir. 1997); Hoover v. Beto, 467 F.2d 516,
530 (5th Cir. 1972). In this case, the state court reasonably found that the instruction
adequately cured the error, as the jury presumably followed the instruction.
Furthermore, even without the instruction, the admission of the statement was
harmless. Petitioner’s clear motive, inconsistent statements to the police, and actions
leading up to and on the night of the murder, strongly support the guilty verdict. All
three of the co-conspirators pointed fingers at each other - Tate identified petitioner
and Lindsey as the masterminds of the murder, petitioner tried to convince the jury
that Lindsey and Tate planned the murder without him, and Lindsey said that Tate and
petitioner were the guilty parties. The Court cannot say that the jury would find
Lindsey’s self-serving statement credible, nor does the Court believe that the
admission of this single statement would so “fatally infect[]” the trial as to rise to the
level of a due process violation, Anderson v. Goeke, 44 F.3d 675, 679 (8th Cir. 1995),
or constitute anything other than a harmless error in the context of the Confrontation
Clause. See Barrett v. Acevedo, 169 F.3d 1155, 1164 (8th Cir. 1999) (explaining

-7-

harmless error review as applied to Confrontation Clause violations). Relief on this
ground will be denied.
C.

Ground Three

Petitioner contends that his trial counsel was ineffective for failing to object when
the prosecutor and a witness for the prosecution referred to polygraph examinations.
At trial, Detective Hanewinkel testified that he questioned both petitioner and Tate
after the murder. Petitioner changed his story several times, and at first agreed to
take a polygraph test, but later refused. Tate also changed his story multiple times,
and agreed to take a polygraph test. Ultimately, neither petitioner nor Tate took a
test. Petitioner’s refusal to submit to a polygraph was mentioned in the prosecution’s
opening statement, but not emphasized. Tate’s agreement to take the test, and
petitioner’s refusal to do so, were not mentioned in closing arguments, and were not
dwelled upon or emphasized during the direct examinations of Tate or Hanewinkel.
Nevertheless, petitioner argues that his counsel’s failure to object to the references to
polygraphs constituted ineffective assistance.
In order to state a claim of ineffective assistance of trial counsel, petitioner must
meet the Strickland standard: petitioner must demonstrate that his counsel’s
performance was deficient and that he was prejudiced by that performance. Strickland
v. Washington, 466 U.S. 668, 687 (1984). Deficient representation means counsel’s
conduct fell below the conduct of a reasonably competent attorney. Strickland, 466
U.S. at 687. To establish prejudice, petitioner must show “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Id. at 694. Federal habeas review of a Strickland claim is highly
deferential, because “[t]he question is not whether a federal court believes the state

-8-

court’s determination under the Strickland standard was incorrect but whether the
determination was unreasonable - a substantially higher threshold.”

Knowles v.

Mirzayance, 129 S.Ct. 1411, 1420 (2009) (internal quotations and citations omitted).
Petitioner raised this claim in his motion for post-conviction relief in state court.
That court agreed that Missouri excludes all evidence of polygraph tests - including an
agreement or refusal to submit to the test - and that counsel’s failure to object was
due to ignorance of the law, and not trial strategy. At the hearing on petitioner’s
motion, trial counsel admitted that, while he knew that testimony about the results of
a polygraph exam was inadmissible, he was unaware that testimony about a person’s
agreement or refusal to take an exam was also inadmissible. However, the motion
court found that counsel’s error was not so grave as to constitute constitutionally
deficient performance, nor was petitioner prejudiced by counsel’s mistake.

The

Missouri Court of Appeals affirmed.
Petitioner cannot show that his counsel’s failure to object resulted in the
prejudice required to satisfy the second prong of Strickland. The references to the
polygraph examinations were fleeting, and not mentioned in closing argument. The
petitioner did not testify and there is no indication that the polygraph references
affected the jury’s credibility assessments. The evidence presented at trial against
petitioner was strong, and there is no reasonable probability that, had counsel objected
to the testimony, the result of the trial would have been different. Because the Court
finds the state court’s determination under the second prong of Strickland was
reasonable, petitioner is not entitled to relief, and the Court need not address the first
prong of the Strickland test.

-9-

D.

Ground Four

Petitioner argues that his counsel on direct appeal was ineffective for failing to
raise the issue of the polygraph evidence.
At the post-conviction evidentiary hearing, appellate counsel testified that she
did not raise the issue of the polygraph evidence because it was not preserved before
the trial court, and she wanted to pursue claims which she thought had a better chance
of success. The motion court found that this constituted reasonable appellate strategy,
and was not deficient performance. The Missouri Court of Appeals affirmed.
The state court’s application of Strickland was reasonable, and petitioner cannot
show that appellate counsel’s performance fell below an objective standard of
reasonableness. Appellate counsel made a reasoned determination to pursue the
claims which she determined to have the best chance of success. There is nothing
constitutionally infirm about this exercise of her professional judgment. See Jones v.
Barnes, 463 U.S. 745 (1983) (holding that appellate counsel is not required by the
Constitution to raise every nonfrivolous issue requested by defendant). Accordingly,
relief on this ground will be denied.
E.

Ground Five

Petitioner argues that his trial counsel was ineffective for failing to call him to
testify on his own behalf.
At the post-conviction evidentiary hearing, petitioner’s trial counsel testified that,
prior to trial, he and petitioner discussed the possibility that he would call petitioner to
testify. They agreed to adopt a “wait and see” approach, and decided to determine
whether petitioner should testify depending on the evidence presented by the State at
trial. Counsel testified that, after the State rested, he advised petitioner not to take

-10-

the stand, because petitioner’s testimony would conflict with the theory of the case as
presented by the defense. The defense’s theory was that Tate and Lindsey conspired
to commit the crime, and petitioner was not involved. Petitioner wished to testify that
Tate did not commit the murder, and that the murder was committed by an unknown
third party. Counsel testified that, ultimately, petitioner agreed that he should not
testify and did not change his mind after making this decision. Resp. Ex. 8
At the evidentiary hearing, petitioner testified that he wanted to testify at trial
but defense counsel refused to call him as a witness. He explained that, when the
court advised him of his right to testify and questioned him about the voluntariness of
his waiver of this right, he did not understand and was confused because the defense
had already rested, and he did not believe he could reopen testimony. Id.
The post-conviction motion court denied relief on this claim, and found that
petitioner voluntarily waived his right to testify. Resp. Ex. 5. The court of appeals
affirmed, and emphasized that the motion court was free to believe counsel’s
testimony, and disbelieve petitioner’s. That court further noted that counsel’s advice
not to testify constituted sound trial strategy, as petitioner’s testimony would have
contradicted the theory of the defense. Resp. Ex. 7.
The state court’s application of law and determinations of fact were reasonable.
The evidence shows that defendant voluntarily waived his right to testify, and that
counsel provided competent advice on the subject. Petitioner gave the trial court no
indication that he wished to testify, and in fact affirmatively represented to that court
that he was waiving his right and was aware that the decision was entirely his. “The
defendant may not... indicate at trial his apparent acquiescence in his counsel’s advice
that he not testify, and then later claim that his will to testify was ‘overcome.’” United

-11-

States v. Bernloehr, 833 F.2d 749, 752 (8th Cir. 1987). Accordingly, petitioner’s claim
for relief on this ground will be denied.
IV.

Conclusion

For the reasons discussed above, the Court finds that petitioner has failed to
establish that he is entitled to relief based on state court proceedings that were
contrary to, or an unreasonable application of, clearly established federal law, or based
upon an unreasonable determination of the facts in light of the evidence presented in
state court proceedings. 28 U.S.C. § 2254(d). Because petitioner has failed to make
a substantial showing of the denial of a constitutional right, the Court will not issue a
certificate of appealability.

See Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997).

A separate judgment in accordance with this Memorandum will be entered this
same date.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 14th day of May, 2014.

-12-